Nationale Identität und Verfassungsidentität. Schutzgehalte, Instrumente, Perspektiven

Identity is the new buzzword in European constitutional law. In recent years, an intense debate has been emerging on how Art. 4 sec. 2 TEU, which strives to protect the »national identities« of the EU Member States, influences the structure and the future of European integration – a debate that has generated a lot of heat, but not much light. It is still poorly understood, how Art. 4 sec. 2 TEU relates to the concept of »constitutional identity«, which has been developed by several national constitutional courts, and – more fundamentally – why collective identities should be protected at all. This ambivalence has enabled critics to denounce the inherent vagueness of the concept and to denigrate it as a nostalgic, if not reactionary attempt to re-nationalize European constitutional space. Against this backdrop, the paper argues that the concept of identity can be given a clear meaning and that it can be developed as a genuine »Verfassungsverbundbegriff« – a concept that allows a unique and privileged communication between the European legal order and the national constitutional systems and their respective courts. In particular, the paper shows that the contents that are part of the »national« or »constitutional« identities of EU Member States should be protected, (i) because they have passed the »generalizability test«, which is a prerequisite for their constitutionalization, (ii) because these contents are essential for citizens to recognize the constitutional order as being their »own«, or (iii) because their renunciation would constitute a political rupture or revolution that cannot be legitimized by the constitutional rules on the evolutionary development of the political system. Understood this way, identity is not a »norme de résistance«, but a platform for negotiating normative principles that have traditionally been institutionalized in the nation state and now have to be refined for a supranational environment. Finally, the paper explores the existing tools and remedies for the protection of national or constitutional identities in European and national constitutional law. Taking account of issues that interact with the concept, namely the primacy of EU law, it develops a coherent system for protecting identity that tightly interweaves European and national constitutional law.